Why is Guardianship Needed for Seniors?

Some seniors may suffer an injury or an event that leaves them unable to act in their own best interests. Others may have dementia or another condition that causes mental decline and reach the point where they are no longer competent to make serious decisions about finances or healthcare.

How is Guardianship Different From Power of Attorney?

Power of attorney also grants legal authority over another person’s affairs, but in a power of attorney, the senior would choose the person to act on his behalf, usually a family member or someone close. In guardianship, the court appoints someone to act for him, and the guardian could, in theory, have no previous relationship with his or her ward.

Granting power of attorney is a calculated move, possibly made at the start of an illness or period of incapacitation, but guardianship usually happens after the senior has become unable to make decisions for himself or herself. Elder Law Answers says that because guardianship “involves a profound loss of freedom and dignity,” many states require other options like power of attorney to be considered first.

The hearing will determine whether the senior is incapacitated and to what extent assistance is needed. If the court determines the senior is incapacitated, the next matter to be decided is whether the proposed guardian is an acceptable choice for the senior. The court will then determine what reporting requirements it has for the guardian and whether it must be consulted for the approval of significant financial transactions.

What is Guardianship Fraud?

The possibility of guardianship being granted to those who do not have the senior’s best interests at heart creates a situation which, according to some, is “ripe for fraud.” Recent stories in The New Yorker and a feature on “Last Week Tonight With John Oliver” have told worrying stories of seniors who have lost everything when professional guardians have been granted guardianship in spurious circumstances, sold their assets from underneath them and charged them thousands of dollars for unwanted services, like taking a senior to a basketball game.

There is little data available on guardianship, especially considering the vast powers granted to guardians. Private guardians are necessary because sometimes, the court may be referred cases, for example, by social workers, where seniors do not have a responsible loved one to look after them. In such cases, a private guardian would be appointed. These guardians may bill the senior "reasonable fees," but there is minimal definition surrounding what's "reasonable." The Sixth Circuit notes that while most guardians are “great,” some bill for sending messages, scheduling appointments (and the appointment itself), multiple staff members carrying out one task and other “non-substantive” items. Often, nobody checks billing unless there is a complaint.

These documents must continuously be reviewed and kept up-to-date. Like all legal documents, keep originals and copies safe, and lodge a copy with an attorney. Your loved one may also be able to set up an Advance Medical Directive, which sets out the decisions that he or she would make in the event of incapacitation.

For more information on preparing finances and legal issues for senior loved ones, read this article.

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Each Visiting Angels agency is a franchise that is independently owned and operated.The Franchisor, Living Assistance Services Inc., does not control or manage the day to day business operations of any Visiting Angels franchised agency.